Employment Law Update – August 2019

Recent Changes in Employment Law

Payslip Changes

On 6 April 2019 important changes to the rules on payslips were introduced. Namely:

  • The right to a payslip now extends to all workers, not just employees.
  • Payslips must include additional information for individuals whose pay varies depending on the number of hours they have worked.

For more information on these changes please click here to read Erin Duffy’s article on the subject.

 

Minimum Wage Increase

On 1 April 2019 increases to the National Minimum Wage were introduced as follows:

  • For workers aged under 18 (who are no longer of compulsory school age) the hourly rate increases to £4.20.
  • For workers aged 18 – 20 the hourly rate increases to £6.15.
  • For workers aged 21 – 24 the hourly rate increases to £7.70.
  • For workers ages 25 and over the hourly rate increases to £8.21.
  • It is important that you check that your business is paying its workers the correct amount. Adequate records should also be kept to show that you have complied with legislation and are paying the right amount.

 

Statutory Redundancy Pay

On 6 April 2019 new limits on statutory redundancy pay came into force.

  • An employer that dismisses an employee on redundancy grounds must pay that employee statutory redundancy pay if they have worked for the employer for at least 2 years.
  • Statutory redundancy pay is calculated according to the employee’s weekly pay, length of service and age. The weekly pay is subject to a ‘cap’ which, as from 6 April 2019, is set at £525.
  • If you are making redundancies in your business it is important to follow the correct processes and ensure that redundancy pay is calculated properly.

If you should need any advice on calculating redundancy pay, or any other redundancy issue, please contact Erin Duffy.

 

Case Law

 

Restrictive Covenants

Employment contracts often include ‘restrictive covenants’ seeking to restrict who an employee may work for immediately following the termination of their employment (i.e. to stop them working for a competitor and taking the employer’s clients with them).  There has been doubt in recent years over the enforceability of these covenants particularly when they are overly onerous or restrictive.

However the Supreme Court recently held that a clause containing a restriction which prevented an employee from being “directly or indirectly engaged, concerned or interested in” a competing business for six months after termination of employment could be enforced (see Egon Zehnder Ltd v Tillman [2019] UKSC 32).Whilst the Supreme Court held that the words “interested in” made the clause too widely drafted, if these words were removed the rest of the clause was reasonable and enforceable.

It is important to keep the restrictive covenants in your contracts under review to ensure they remain appropriate and enforceable.

 

Knowledge of Disability

In a recent case, the Employment Appeal Tribunal (‘the EAT’) held that a small employer did not have actual or constructive knowledge of an employee’s mental impairment and could not therefore reasonably have been expected to know that she was disabled, for the purposes of section 15 of the Equality Act 2010.

In the particular circumstances of this case (A Ltd v Z [UKEAT/0273/18]) Ms Z had worked for her employer for just over a year and, in that time, had 85 days of unscheduled absence, 52 of which were recorded as sick leave. When questioned about her absence she routinely referred to physical ailments and did not disclose that, in fact, she had a long history of stress, depression, low mood and schizophrenia, which was the real cause of her absence. The employer decided to dismiss her, as she was unreliable, but the employee bought an Employment Tribunal claim against the employer for disability discrimination.

It was accepted that Ms Z’s mental health issues did amount to a disability since those issues had a long term and adverse effect on her ability to carry out normal day to day activities.

However, the EAT held that since the employee had suppressed information about her mental health problems the employer could not reasonably have been expected to know that she was disabled by virtue of these problems.

This case is an extreme example of concealment by an employee of a mental impairment and illustrates the fact that many employees still worry there is a stigma attached to mental health issues.

Employers should take care to consider whether an employee may be disabled even if a disability has not been disclosed by the employee themselves. An employer must do all they can reasonably be expected to do to find out if a worker has a disability, whilst still respecting the privacy of the individual and keeping their information confidential.

 

Employer Not Liable for Employee’s Facebook Post

The EAT has held that an employer was not vicariously liable for harassment, pursuant to the Equality Act 2010, when an employee posted a racially offensive image on Facebook and shared it with a colleague (Forbes v LHR Airport Ltd UKEAT/0174/18).

In the particular facts of the case, an employee of London Heathrow Airport, ‘Ms S’, had posted an image of a golliwog on her own private, non-work related, Facebook page with the caption “Let’s see how far he can travel before Facebook takes him off”. She shared the image and caption with her friends on Facebook, which included a work colleague. The work colleague in question then, at work, showed the image and caption to another work colleague, Mr Forbes (the Claimant), who was offended by it and, eventually, bought a claim for harassment against London Heathrow Airport.

Whilst the EAT accepted that the image was offensive and caused offence to Mr Forbes it did not accept that image was shared by Ms S in the course of her employment, which is an essential element of employer liability under section 109 of the Equality Act 2010. As such Mr Forbes’ claim was dismissed.

This case highlights the difficulties and risks that social media poses for employers and the importance of having an appropriate social media policy in place, most commonly featured in the employer’s Employee Handbook.

 

Should you require advice or assistance in preparing any workplace policies please contact Erin Duffy who would be pleased to assist.

Erin Duffy
Erin is Head of Litigation at Leonard Gray, specialising and experienced in advising both individuals and businesses in relation to a variety of litigious issues.

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